Zalma on Insurance
Education • Business
Insurance Claims professional presents articles and videos on insurance, insurance Claims and insurance law for insurance Claims adjusters, insurance professionals and insurance lawyers who wish to improve their skills and knowledge. Presented by an internationally recognized expert and author.
Interested? Want to learn more about the community?
November 10, 2023
Contiguous Trigger is Law in West Virginia

Ambiguous Policy Wording Results in Adoption of Continuous Trigger of Coverage

Barry Zalma
Nov 10, 2023

Read the full article at https://lnkd.in/gKZCZWdx and se the full video at https://lnkd.in/g6WKGvD6 and at https://lnkd.in/gTicqyji and at https://zalma.com/blog plus more than 4650 posts.

The United States Court of Appeals for the Fourth Circuit certified a question to the Supreme Court of Appeals of West Virginia asking: “[a]t what point in time does bodily injury occur to trigger insurance coverage for claims stemming from chemical exposure or other analogous harm that contributed to the development of a latent illness?”

In Westfield Insurance Company v. Sistersville Tank Works, Inc.; et al, No. 22-848, Supreme Court of Appeals of West Virginia (November 8, 2023) the Court answered the question. The Supreme Court answered the question with the conclusion that a “continuous-trigger” theory applies to the policy, as the policy is ambiguous as to when coverage is triggered.

The gateway to coverage under every standardized, commercial general liability (or “CGL”) policy issued in the United States since 1966 is proof that a bodily injury or property damage has “occurred.”

FACTUAL BACKGROUND

Sistersville Tank Works (“STW”) has, since late 1984, been a family-owned and -operated West Virginia corporation. STW manufactures, installs, and repairs various types of tanks at industrial sites throughout world, including at several chemical plants in West Virginia.

Beginning on the first day of 1985, STW was protected under a commercial general liability (“CGL”) policy it purchased from Westfield Insurance Company (“Westfield”), an Ohio corporation. Westfield thereafter renewed STW’s coverage under a series of CGL policies with one-year (or more) coverage periods. The CGL policy defines a “bodily injury” as a “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.”

At different points in 2014, 2015, and 2016, three men were diagnosed with various forms of cancer. In 2016 and 2017, the “claimants” (the men with cancer and/or their spouses) sued STW in three separate lawsuits in West Virginia state courts. The claimants alleged the cancers were, in some part, caused by STW’s tanks.

STW asked Westfield to provide a defense and indemnification to the three lawsuits under its previously purchased CGL policies. Westfield denied coverage under its CGL policies for the three suits and, in June 2018, filed a complaint against STW for declaratory relief and after discovery, the parties filed competing motions for summary judgment.

In an order dated September 4, 2020, the district court granted a judgment in favor of STW and found Westfield owed STW a duty to defend and to indemnify under all of its policies issued from 1985 through 2010. The district court concluded that Westfield’s promise to cover a bodily injury that “occurs during the policy period” was ambiguous in light of the latent disease claims asserted against STW. The district court ruled that the language in Westfield’s policy did not clearly identify when coverage was “triggered” in instances where a claimant alleged repeated chemical exposures and the gradual development of a disease over successive policy periods.

The Supreme Court had never addressed the question raised before the district court. Nevertheless, the district court calculated that this Court would apply the continuous-trigger theory to clarify the ambiguous language in Westfield’s policy.

DISCUSSION

Occurrence-based CGL policies provide coverage if the event insured against takes place during the policy period, irrespective of when a claim is presented. The certified question raises a different, more complicated set of circumstances. Westfield contends that manifestation of a disease is the sole trigger of coverage under its occurrence-based CGL policies.

On the other hand, STW takes the position that the occurrence language incorporates a “continuous” trigger theory of coverage. STW’s argument encompasses the entirety of Westfield’s insuring agreement. STW points out that, by definition, an “occurrence” under Westfield’s policy includes “continuous or repeated exposure” to a “harmful condition []” that results in “bodily injury, sickness or disease.”

It is evident from the parties’ competing positions that the meaning of the policy’s insuring agreement is uncertain or doubtful in the context of latent or progressive diseases, as the parties have shown the occurrence language used is susceptible to at least two plausible constructions. Here, the occurrence and bodily injury provisions that Westfield chose to incorporate into its insuring agreement fail to precisely articulate a trigger of coverage. They are, the Supreme Court concluded, ambiguous.

History shows that the “occurrence” language incorporated into the CGL policy was designed with the goal of affording coverage for singular, repeated, or continuous exposures to hazardous substances if those exposures cause either a singular or a progressive bodily injury, sickness, or disease. The Supreme Court concluded, after review of the history of the drafting of the CGL, that the drafters of the occurrence language used by Westfield intended to incorporate a continuous trigger of coverage.

The Policy Language Supports A Continuous Trigger

The reasoning of the Supreme Court’s recognition of the continuous trigger of coverage has the effect of spreading the risk of loss widely to all of the occurrence-based insurance policies in effect during the entire process of injury or damage. As one court said, the continuous trigger theory is the most efficient doctrine for allocation of liability amongst insurers for toxic waste cases, because it encourages all insurers to monitor risks and charge appropriate premiums.

Therefore, an occurrence based CGL policy covers all injuries, sicknesses, or diseases that occur during coverage, not merely those that become manifest.

Under the continuous-trigger theory, when a claim is made alleging a progressive injury caused by chemical exposure or other analogous harm, every occurrence-based policy in effect from the initial exposure, through the latency and development period, and up to the manifestation of the bodily injury, sickness, or disease, is triggered and must cover the claim.

ZALMA OPINION

It is axiomatic that when a court finds an ambiguity in an insurance policy it must be interpreted in favor of coverage for the insured. West Virginia found the policy was ambiguous as to trigger and therefore, overruling a strenuous dissent, and applied the continuous trigger expanding the coverages available to STW for the claims of the plaintiffs that STW was responsible for the illnesses because under the continuous-trigger theory of coverage every moment from the first exposure to the harmful chemicals up to and including the date of diagnosis would be covered by Westfield’s policy.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos.

Subscribe to Excellence in Claims Handling at locals.com at https://zalmaoninsurance.locals.com/subscribe or at substack at https://barryzalma.substack.com/publish/post/107007808

Go to Newsbreak.com https://www.newsbreak.com/@c/1653419?s=01

Follow me on LinkedIn: http://www.linkedin.com/comm/mynetwork/discovery-see-all...

Daily articles are published at https://zalma.substack.com.

Go to the podcast Zalma On Insurance at https://podcasters.spotify.com/pod/show/barry-zalma/support; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – http://zalma.com/blog/insurance-claims-library.

Please tell your friends and colleagues about this blog and the videos and let them subscribe to the blog and the videos. Go to Barry Zalma videos at Rumble.com at https://lnkd.in/gV9QJYH; Go to Newsbreak.com https://lnkd.in/gvDt8mBJ to substack at https://lnkd.in/gus8Mzkq; go to the Insurance Claims Library – https://lnkd.in/gwEYkxD

00:11:54
Interested? Want to learn more about the community?
What else you may like…
Videos
Posts
May 01, 2026
Zalma’s Insurance Fraud Letter – May 1, 2026

Happy Law Day

ZIFL – Volume 30, Issue 9 – May 1, 2026

Read the full article at https://www.linkedin.com/pulse/zalmas-insurance-fraud-letter-may-1-2026-barry-zalma-esq-cfe-2tywc, see the video at at and at https://zalma.com/blog plus more than 5300 posts.

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

ZIFL – Volume 30, Issue 9 – May 1, 2026

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year and is written by Barry Zalma.

DOJ Creates National Fraud Enforcement Division

Will the Feds Take on Insurance Fraud? Possibly as Part of a National Anti-Fraud Effort

On April 7, 2026, the Acting Attorney General, Todd Blanche, issued a memorandum establishing the Department of Justice National Fraud Enforcement Division (NFED). The memo describes an ambitious, but perhaps redundant, vision for this ...

00:08:23
placeholder
April 30, 2026
The Efficient Proximate Cause Doctrine Saves a Claim

When Abalone Died As a Result of Multiple Causes The Efficient Proximate Cause Requires Payment

Post number 5345

Read the full article at https://www.linkedin.com/pulse/efficient-proximate-cause-doctrine-saves-claim-barry-zalma-esq-cfe-yndlc, see the video at and at and at https://zalma.com/blog plus more than 5300 posts.

In American Abalone Farms, LLC v. Star Insurance Company et al., H052643, California Court of Appeals, Sixth District (April 27, 2026) the Court of Appeals dealt with an insurance coverage issue that required application of the efficient proximate cause doctrine.

FACTS

American Abalone Farms, LLC ("American Abalone" ) operates an aquaculture farm in Santa Cruz County, California, raising abalone in tanks. In August 2020, the CZU Lightning Complex Fires led to a prolonged power outage and road closures near the farm. As a result, the farm’s water pumps failed, causing the death of most of the ...

00:08:38
placeholder
April 29, 2026
Breach of a Specific Condition Precedent Is a Complete Defense

Breach of a Specific Condition Precedent Is a Complete Defense

See the video at and at and at https://zalma.com/blog plus more than 5300 posts.

In United Services Automobile Association and State Farm Mutual Automobile Insurance Company v. Anthony Wenzell, 2026 CO 25 (Colo. Apr. 27, 2026) Anthony Wenzell was rear-ended in a car accident. He had a significant prior 2014 accident that required back surgery.

Wenzell claimed underinsured-motorist (UIM) benefits under three policies: (1) the tortfeasor’s liability policy, (2) his own primary UIM policy with State Farm, and (3) an excess UIM policy issued by USAA (under his brother’s policy, which contained an “other insurance” clause making USAA’s coverage excess over any collectible insurance).

After receiving the claims, both USAA and State Farm repeatedly requested that Wenzell execute comprehensive medical-release authorizations so they could obtain his full medical records and ...

00:11:27
placeholder
12 hours ago

It is Fraud to Make the Same Claim Twice

Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.

Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages

Post number 5347

No One is Entitled to be Paid for the Same Loss Twice

In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.

BACKGROUND

In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.

PROCEDURAL HISTORY

State Farm filed motion for summary...

post photo preview
12 hours ago

It is Fraud to Make the Same Claim Twice

Read the full article at https://www.linkedin.com/pulse/fraud-make-same-claim-twice-barry-zalma-esq-cfe-c4g8c and at https://zalma.com/blog.

Chutzpah: After Being Paid for a New Roof Insured Makes Second Claim For Same Damages

Post number 5347

No One is Entitled to be Paid for the Same Loss Twice

In Mohammed Ali Khalili v. State Farm Lloyds, No. 14-25-00611-CV, Court of Appeals of Texas (April 30, 2026) Khalili maintained a State Farm Lloyds homeowners insurance policy for decades. In 2008 he filed a roof-damage claim; State Farm paid him to replace the entire roof (shingles and gutters). Khalili never replaced the roof and repeated his claim.

BACKGROUND

In 2021 he filed a second roof claim. State Farm’s inspectors found the roof “very old” with extensive non-storm-related damage. The claim was denied because (1) the damage did not exceed the deductible and (2) State Farm had already paid for a full roof replacement.

PROCEDURAL HISTORY

State Farm filed motion for summary...

post photo preview
April 30, 2026
Investigation of First Party Property Claims

What Must be Done after Notice of a Claim is Received by the Insurer

Read the full article at https://lnkd.in/gzvvdkMZ and at https://zalma.com/blog.

Below you will read from this post until you reach the the end of this blog post as the free part of an Excellence in Claims Handling post. To read the full article and receive all articles for members of Excellence in Claims Handling you should consider joining as a paid member to get full access to articles for members only, to our news, analysis, insurance coverage, claims, insurance fraud and insurance webinars, by clicking at the subscription link below.

A first party property policy does not insure property: it insures a person, partnership, corporation or other entity against the risk of loss of the property. Before an insured can make a claim for indemnity under a policy of first party property insurance the insured must prove that there was damage to property the risk of loss of which was insured by the policy. The obligation imposed on the insured ...

post photo preview
See More
Available on mobile and TV devices
google store google store app store app store
google store google store app tv store app tv store amazon store amazon store roku store roku store
Powered by Locals